Relocation

Counsel from Our Trusted Livingston Matrimonial & Family Law Attorneys

By New Jersey statute, where the Superior Court “has jurisdiction
over the custody and maintenance of parents divorced, separated or living
separate” and where such children “are natives of this State,
or have resided five years within its limits,” neither parent may
remove them from the State without the consent of the other parent or
leave of court (See N.J.S.A. 9:2-2). In adjudicating requests by parents
to relocate with their children, applications which judges notoriously
find difficult, the standard to be applied depends on the custodial arrangement
exercised by the parties.

Whether you are seeking to relocate with your children or are opposed to
a former spouse or partner taking them out of state, the attorneys at
Ziegler & Zemsky, LLC are prepared to advocate on your behalf. Contact our experienced and award-winning
Livingston matrimonial lawyers today to start exploring your legal options.

Get zealous and compassionate advocacy you can count on. Call us at (973) 878-4373 today.

The Relocation Process

Where one parent is clearly the primary residential custodian, the Court
will apply the standard as articulated by the Supreme Court of New Jersey
in Baures v. Lewis, 167 N.J. 91 (2001). Pursuant to same, the custodial
parent seeking to move has the initial burden to demonstrate “that
there is a real advantage to that parent in the move and that the move
is not inimical to the best interests of the children.” Id. at 111.

Once this initial burden is satisfied, the burden then shifts to the noncustodial
parent “who must produce evidence opposing the move as either not
in good faith or inimical to the child’s interest.” Id. at
119. In making these determinations, the Baures Court further articulated
a number of factors to be considered.

These factors include:

The given motives behind the proposed move

The reasons the opposing parent is against the move

The past history between the two parents and how it may relate to the relocation dispute

The educational, healthcare, and recreational resources the child may have
as a result of the move

The capacity the new location has to accommodate any of the child's
special needs or interests

The ability the non-custodial parent will have maintain their relationship
with child if the move happens

The likelihood that the custodial parent will foster the child’s
relationship with the other parent if the move happens

The potential effect the move will have on the child's relationships
with extended family members

The child's preference (if they are old enough)

The child's current proximity to their high school graduation

The non-custodial parent's ability to relocate

Any other factor the court finds relevant to the child's best interests

Id. at 117. “Obviously not all factors will be relevant and of equal
weight in every case.” Id.

When There Is Joint Custody

Conversely, where “the parents truly share both legal and physical
custody, an application by one parent to relocate and remove the residence
of the child to an out-of-state location must be analyzed as an application
for a change of custody where the party seeking the change in the joint
custodial relationship must demonstrate that the best interests of the
child would be better served by residential custody being primarily vested
with the relocating parent.” O’Connor v. O’Connor, 349
N.J. Super. 381, 385 (App. Div. 2002).

As set forth in the decision of Shea v. Shea, 384 N.J. Super. 266, 271
(Ch. Div. 2005), the best interests standard will also be applied in cases
where there is a primary residential custodian but the request for removal
“comes shortly after the settlement of the Final Judgment of Divorce,
and the material facts and circumstances forming the good faith reason
for the removal request were known at the time of the entry of the final
judgment.” In such a circumstance, the party opposing the relocation
is afforded the opportunity to be “restored to the position he or
she held prior to the Final Judgment of Divorce” as to rule otherwise
“could potentially encourage disingenuous settlements” or
encourage parties to use the above-referenced Baures standard as a “sword”. Id.

Divorce Settlements & Relocation

Where parties have included language in their settlement agreement precluding
relocation, the parent seeking to move with the children must demonstrate
“a substantial unanticipated change in circumstances warranting
avoidance of the agreed-upon relocation provision” in order to benefit
from the more lenient Baures standard. If they fail to demonstrate same,
the best interests standard will be applied. See Bisbing v. Bisbing, 445
N.J. Super. 207, 213-214 (App. Div. 2016).

No matter what your relocation circumstances are or what side of this family
law matter you are on, Ziegler & Zemsky, LLC can help. Call today
to request an
initial case evaluation.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.

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